§ 2.5 Other Nonimmigrants and Their Permitted Activities

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 2.5 OTHER NONIMMIGRANTS AND THEIR PERMITTED ACTIVITIES

As noted in § 2.2, aside from the visitor visa, the most common nonimmigrant visas a business lawyer might encounter are the following:

• H-1B, H-1B1, or E-3 professional visas (8 USC § 1101(a)(15)(H), (E); 8 CFR § 214.2(h), (e));
• L-1 visas for international transferees who are executives, managers, or workers with specialized knowledge (8 USC § 1101(a)(15)(L); 8 CFR § 214.2(l));
• E-1 or E-2 visas for executives and managers or employees of individuals or companies who engage in trade or investment pursuant to a treaty (8 USC § 1101(a)(15)(E); 8 CFR § 214.2(e));
• TN visas for Canadians or Mexicans employed in certain occupations specifically identified in NAFTA and its successor, the USMCA (8 CFR § 214.6(c) (Appendix 1603.D.1 to Annex 1603 of NAFTA));
• O visas for individuals with extraordinary ability in the athletics, arts, education, sciences, and business (8 USC § 1101(a)(15)(O); 8 CFR § 214.2(o));
• P visas for internationally recognized athletes, either individually or as part of a team, or an entertainment group that has been recognized internationally (8 USC § 1101(a)(15)(P); 8 CFR § 214.2(p));
• R visas for ministers and religious workers (8 USC § 1101(a)(15)(R); 8 CFR § 214.2(r));
• J-1 visas for exchange scholars, interns, or trainees (8 USC § 1101(a)(15)(J); 8 CFR § 214.2(j)); and
• and F-1 student visas (8 USC § 1101(a)(15)(F); 8 CFR § 214.2(f)).

All of these visa holders—as well as their spouses and unmarried, dependent children under age 21 —can passively own real property, stock, or other business interests. They may also serve on boards of directors, although care should be taken if remuneration other than paying incidental expenses is involved. 9 FAM 402.2-5(F)(1), < https://fam.state.gov/FAM/09FAM/09FAM040202.html >. They may not engage in gainful or productive employment other than that authorized in their specific visa category. This means no side business, no moonlighting, and no 1099 activity.

In most instances, except for spouses in the E, L, and J visa categories and H-4 spouses married to an H-1B status holder with an approved I-140 immigrant petition, dependent spouses of nonimmigrant visa holders are not permitted to engage in "gainful employment" of any kind unless the spouse has his or her own independent visa that authorizes employment. E, L, J, and certain H-4 visa spouses may apply for and obtain an employment authorization document (EAD) based on their spouse's principal E, L, J, or H-1B visa. 8 USC § 1184(c)(2)(E), (e)(6); 8 CFR § 274a.12(c)(5), (c)(26). This is a separate application that is filed with the USCIS after attaining E, L, J, or eligible H-4 dependent status. Employment cannot commence until the application has been approved; however, the EAD—discussed in greater detail in § 2.5-2—allows the spouse to work anywhere and engage in active business ownership and management. Dependent children are not permitted to work under any visa category.

§ 2.5-1...